In re Guardianship of Rudy - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
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In re Guardianship of Rudy.
[Cite as In re Guardianship of Rudy (1992), Ohio
St.3d ].
Guardians -- Without a finding of incompetence, the appointment
of a limited guardian by a trial court is improper -- R.C.
2111.02, applied.
(No. 91-2112 -- Submitted November 10, 1992 -- Decided
December 11, 1992.
Appeal from the Court of Appeals for Trumbull County, Nos.
90-T-4398 and 90-T-4416.
At the time of the trial court's deliberations, Margaret
Rudy was a seventy-eight-year-old widow living at her home in
Niles, Ohio. After her husband's death in 1977, she managed
their property and other assets. She apparently managed the
assets well, at least until sometime in 1988.
By 1988 Mrs. Rudy's health had deteriorated. Her
diabetes became worse. She may have developed breast cancer,
and she became overweight. Her adopted sons, John and David,
had stopped assisting with chores. Further, she testified, a
maintainance worker, who had been taking care of her rental
properties, stopped helping her. She told a friend she wanted
someone to take care of her affairs. Mrs. Rudy asked the
friend, but this person declined.
In late 1988, Mrs. Rudy asked the priest of Our Lady of
Sorrows church to give her communion. During his visit to her
house, she asked if anyone in the church could help her. The
priest suggested Peter Burns. Burns, together with his friend
Delbert Strawder, agreed to assist. The men cleaned her house
and began to help with chores. Mrs. Rudy's health apparently
began to improve. The two men monitored her diet. Her blood
sugar level and blood pressure improved. She lost one hundred
fifty pounds, and was taken to a doctor on a regular basis.
She also became more reclusive, and reduced her contact with
friends.
For many years, Mrs. Rudy had been represented by attorney
Douglas Neuman, and had used the services of stockbroker Donald
Rodenbaugh. She became suspicious of both in early 1989. Mrs.
Rudy testified that she had requested a testamentary trust, but

discovered that her attorney had set up an inter vivos trust
naming himself as trustee. Correspondence from the stockbroker
led her to believe that hundreds of thousands of dollars had
dissapeared from her accounts. In addition, several of her
stocks had been transferred to a street account without her
permission. She was afraid the lawyer and stockbroker might
throw her out of her house. Because of her mistrust, Mrs. Rudy
transferred assets (including her real estate, automobiles,
cash and stocks) to Delbert Strawder and Peter Burns. She also
made a new will leaving almost everything to Burns and Strawder.
David Rudy, by his attorney, Douglas Neuman, applied for
appointment of a guardian in February 1989. In September 1989,
Mrs. Rudy's nephew, Lloyd Tompkins, applied to be appointed as
her guardian. Upon the applications of Rudy and Tompkins, the
probate court appointed John Daily, and later Robert Vesmas, as
limited guardian of Mrs. Rudy's estate. The court of appeals
affirmed this decision. Shortly before oral argument in this
court, Mrs. Rudy died.

Chester, Hoffman, Willcox & Saxbe, John J. Chester,
Richard B. Metcalf and James J. Chester, for appellant Margaret
S. Rudy.
Guarnieri & Secrest and Michael D. Rossi,for appellee
Robert Vesmas.
Ambrosy & Fredericka and James A. Fredericka, for appellee
Lloyd Tompkins.
Westenfield & Neuman and Douglas J. Neuman, for appellee
David W. Rudy.

Herbert R. Brown, J. The issue is whether the
appointment of a guardian for Mrs. Rudy complied with Ohio
law. We find that it did not. Further, despite Mrs. Rudy's
death, we choose not to dismiss the case, because parties on
both sides agree that the resolution in this case could affect
a potential will contest.
The statute governing guardianships is R.C. 2111.02. R.C.
2111.02(B)(1) states in part: "If the probate court finds it to
be in the best interest of an incompetent or minor, it may
appoint pursuant to divisions (A) and (C) of this section, on
its own motion or on application by an interested party, a
limited guardian with specific limited powers." (Emphasis
added.) R.C. 2111.02(C)(3) states: "If the hearing concerns
the appointment of a guardian or limited guardian for an
alleged incompetent, the burden of proving incompetency shall
be by clear and convincing evidence." Mrs. Rudy was not a
minor. Therefore, before a guardian was appointed, her
incompetency had to be proven by clear and convincing evidence.
The probate court held the required hearing and heard the
testimony of numerous witnesses. The court made a long list of
findings, including the following: that "Mrs. Rudy is
receiving medical treatment for a number of infirmities, and
will require on-going medical care in the future," that "Mrs.
Rudy is receiving and requires the assistance of other persons
in order to live in her own home and obtain medical care, and
will require such assistance in the future," that "Mrs. Rudy
was misinformed about the need to expend and transfer her
assets, and relied on that misinformation to her disadvantage

in disposing of her assets," and that "[t]he conveyance of
Mrs. Rudy's assets was not the proper management of her
property, and was not in her best interest." The court then
appointed Mrs. Rudy's attorney, John Daily, as limited guardian
of her estate. Appellees Tompkins and Vesmas contend the
above findings equate to a finding of incompetency and were
sufficient to comply with the statutory mandate.
The probate court did not make a finding that Mrs. Rudy
was incompetent. The finding that Mrs. Rudy had medical
problems and required assistance to live is not sufficient, nor
are the rather vague findings that she was "misinformed" about
the need to transfer assets and that the transfer was "not in
her best interest."
In a second judgment substituting Robert Vesmas as the
limited guardian, the court referred to Mrs. Rudy's
"incapacity." This term is not defined in the statutes
pertaining to guardianship, and its mention in a later judgment
cannot substitute for a specific finding of incompetence.
After a lengthy review of the record, the court of appeals
stated: "When the instant record is examined and considered
along with the judgment entries, it is clear that the trial
court's determination of incapacity addressed appellant's
competency. Thus, the trial court made a finding of mental
impairment, or incompetency, sanctioning the imposition of a
limited guardianship." A court of appeals may review findings
of fact for an abuse of discretion by the trial court. But it
cannot make a finding of fact that should have been made by the
trial court, nor extract such a finding from the trial court's
opinion where no finding was made.
Without a finding of incompetence, the appointment of a
limited guardian by the trial court was improper. Were Mrs.
Rudy still alive, the probate court would be directed to
rescind the letter of guardianship, and the guardian directed
to return assets to Mrs. Rudy's control. However, Mrs. Rudy's
death makes this impossible.
Further, we are not in a position to examine all actions
taken by the guardian with a view to either voiding or
confirming them. The law does not require us to do so. The
order by a probate court appointing a guardian cannot be
collaterally impeached. Shroyer v. Richmond (1866), 16 Ohio
St. 455, paragraph seven of the syllabus; Union Savings Bank &
Trust v. Western Union (1908) 79 Ohio St 89, 86 N.E. 478,
paragraph two of the syllabus; cf. R.C. 2113.23 (pertaining to
executors and administrators). Actions taken by a guardian,
therefore, are under color of law, and may be upheld even where
the guardian's authority is sucessfully challenged. Since
Mrs. Rudy is deceased, and since the parties have a forum
available to test her competency with respect to the wills
proposed for probate, we decline to undo any of the actions
taken by the guardian while acting under color of law. The
assets become a part of Mrs. Rudy's estate the same as if she
had owned them free of the guardianship at the time of her
death.
However, neither the finding of incompetency by the court
of appeals nor the failure of the probate court to find
incompetency is to be used in a will contest where the
competency of Mrs. Rudy may be an issue. That issue must be

resolved de novo on the law and the evidence--some of which
may, of course, be evidence which was previously submitted to
the probate court.
Judgment reversed.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright and Resnick,
JJ., concur.